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UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

_________________

RAYMOND TIBBETTS,Petitioner-Appellant,

v.

MARGARET BRADSHAW, Warden,Respondent-Appellee.

X---->,---N

No. 06-3886

Appeal from the United States District Courtfor the Southern District of Ohio at Cincinnati.

No. 03-00114—Susan J. Dlott, Chief District Judge.

Argued: June 15, 2010

Decided and Filed: February 15, 2011

Before: BATCHELDER, Chief Judge; MOORE and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Holly E. LeClair,OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.ON BRIEF: David L. Doughten, Cleveland, Ohio, Lori Ann McGinnis, Mount Gilead,Ohio, for Appellant. Holly E. LeClair, OFFICE OF THE OHIO ATTORNEYGENERAL, Columbus, Ohio, for Appellee.

BATCHELDER, C.J., delivered the opinion of the court, in which McKEAGUE,J., joined. MOORE, J. (pp. 17–35), delivered a separate dissenting opinion.

_________________

OPINION_________________

ALICE M. BATCHELDER, Chief Judge. Raymond Tibbetts, an Ohio death row

inmate represented by counsel, appeals the district court’s decision to deny his petition

for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. A certificate of

1

No. 06-3886 Tibbetts v. Bradshaw

appealability (“COA”) was granted for three claims: (1) whether trial counsel was

ineffective for failing to develop and present evidence about Tibbetts’ mental status at

the penalty phase; (2) whether trial counsel was ineffective for failing to present

mitigating evidence at the penalty phase; and (3) whether counsel on direct appeal was

ineffective for failing to argue that the trial court did not consider all relevant

information to support the imposition of a sentence less than death. We AFFIRM the

district court’s decision to deny the petition for a writ of habeas corpus because we find

that the efforts of Tibbetts’ trial counsel were not constitutionally deficient and because

any failure of the trial court to consider relevant mitigation evidence was cured by the

Ohio Supreme Court’s independent reweighing of the relevant mitigating factors.

BACKGROUND

In 1998, a Hamilton County, Ohio, jury found Tibbetts guilty on three counts of

aggravated murder, one count of murder, and one count of aggravated robbery, in

connection with the robbery and murder of James Hicks and Susan Crawford. Each

guilty verdict for the aggravated murder and murder counts contained two death penalty

specifications: that the offense was committed during the course of an aggravated

robbery; and that the offense included the murder of two or more persons. The Ohio

Supreme Court summarized the facts as follows:

On November 6, 1997, Hicks’s sister, Joan Hicks Landwehr, arrived atHicks’s home in Cincinnati to meet him for lunch. Landwehr oftenvisited Hicks, who was sixty-seven years old and suffered fromemphysema. Due to his condition, Hicks employed Crawford as a live-incaretaker. Tibbetts, who had married Crawford just over a month earlier,also lived in the house.

After getting no answer at the door and seeing Hicks’s car missing fromits usual parking space, Landwehr entered the home with her spare key.Landwehr went to a second-floor living room and found Hicks’s deadbody slumped in a chair. Landwehr immediately called 911. Landwehrnoticed that her brothers’ chest and stomach were bloody and that hisright pants pocket, where Hicks usually kept his money, was turnedinside out.

When Cincinnati police officers responded a short time later, they foundHicks with a tube still connecting his nose to a nearby oxygen tank. Two


knives protruded from Hicks’s chest, a third knife protruded from hisback, and the broken blade of a fourth knife was also in his back.Officers found additional knives and a knife sheath near Hicks. Abutcher block used to store knives lay behind Hicks’s chair. Deputycoroner Daniel Schultz later determined that Hicks died as a result ofmultiple stab wounds to his chest that punctured Hicks’s heart, lungs, andaorta. Hicks did not have any defensive wounds.

Officers searched the rest of the house and found Crawford lying dead onthe floor of a third-floor room, covered with a sheet. Crawford had beenbrutally beaten; her head was cracked open and lay in a pool of blood.Pieces of Crawford’s brain were lying on the floor next to her head.Crawford had also been stabbed several times, with one knife still stuckin her neck. Crawford also had a broken left arm, which Dr. Schultzcharacterized as a probable result of her attempt to ward off blows.Police found a bloodstained baseball bat and several knives nearCrawford’s body. Dr. Schultz concluded that Crawford died of multipleskull fractures and that at least nine of her stab wounds were inflictedafter her death. In all, Crawford had been struck at least four times in thehead with blunt-force blows and sustained stab wounds to her back,lungs, chest, arm, shoulder, and neck.

Dr. Schultz, who also investigated the crime scene, determined thatHicks and Crawford had been dead for several hours. Policeinvestigators found no identifiable fingerprints on the baseball bat or theknives. The only fingerprints found in the house belonged to eitherTibbetts or Crawford. There were no signs of forced entry anywhere inthe residence. Police also learned from Landwehr and others at the scenethat Hicks’s car, a white Geo Metro, was missing. Landwehr told policethat Tibbetts did not have permission to drive the car.

The day after discovering the bodies, Cincinnati police learned that aCovington, Kentucky police officer had stopped Tibbetts on the night ofthe murders. Just after midnight on November 6, 1997, Covington policelieutenant Michael Kraft found Tibbetts in a white Geo Metro that hadbroken down in the middle of an intersection. According to Kraft,Tibbetts appeared nervous and “smelled somewhat of intoxicants.”Tibbetts also lied to Kraft about the car’s owner, saying that the carbelonged to a friend in Covington.

Kraft summoned another officer to the scene to assist Tibbetts andinvestigate whether Tibbetts was driving under the influence of alcoholor drugs. Officer David Finan arrived a short time later and also notedthat Tibbetts was nervous and smelled of intoxicants. He allowedTibbetts to go, however, after concluding that Tibbetts was not under theinfluence of alcohol or drugs. The car was towed away and impounded


by Covington police. Cincinnati police later recovered the Geo Metrofrom the Covington impoundment lot and found bloodstains on thesteering wheel, gearshift, door panel, and brake handle.

After learning of the Covington police’s encounter with Tibbetts,Cincinnati police charged Tibbetts with receiving stolen property andobtained an arrest warrant on November 7, 1997. The very next day,Tibbetts voluntarily admitted himself to the psychiatric unit at St.Elizabeth Hospital in Edgewood, Kentucky. Tibbetts told nurses that hisname was Ray Harvey and provided an incorrect Social Security number.Despite the false name and identification information, nurses at thepsychiatric unit recognized Tibbetts from his previous treatment at thehospital. On the same day that Tibbetts checked into St. Elizabeth,police arrested Tibbetts on the warrant for receiving stolen property andtook him to a local jail for questioning.

Tibbetts signed a waiver of his Miranda rights and calmly cooperatedwith the two investigating officers who questioned him. Tibbetts had anoticeable cut on his hand and told the investigators he had cut his handon a river barge where he had been staying. When an officer askedwhether Tibbetts had seen his wife lately, Tibbetts responded that he hadnot and then terminated the interview. As police were leaving, Tibbettsqueried, “What’s the charge, manslaughter?” The investigators, who hadnot mentioned the murders to Tibbetts during the interview, respondedthat the matter was under investigation.

A few days later, a Cincinnati police officer retrieved from St. Elizabeththe clothing Tibbetts was wearing when he checked himself into thepsychiatric unit and took it to the crime lab for DNA testing. The socks,T-shirt, and blue jeans Tibbetts was wearing on November 8, 1997, wereall stained with human blood. A serologist found that the blood onTibbetts T-shirt matched Tibbetts’s blood, that blood on the socksmatched Hicks’s blood, and that blood on the blue jeans matched bloodfrom Tibbetts, Crawford, and an unknown person. The serologist alsoanalyzed blood found in the Geo Metro and concluded that blood on thedoor, brake handle, and gearshift matched Tibbetts’s blood.

State v. Tibbetts, 749 N.E.2d 226, 237-39 (Ohio 2001).

In preparation for the penalty phase, trial counsel hired a mitigation specialist,

James Crates, and a forensic psychiatrist, Dr. Glen Weaver. Crates obtained numerous

records from the Hamilton County Department of Children Services; St. Elizabeth,

Eastgate Psychiatric Center; Anderson High School; Forest Hill School District; Live

Oaks Career; Transitions, Inc./Droege House; and McGuinness Corp., Tibbetts’ former


employer. Crates also contacted and interviewed members of Tibbetts’ family. Dr.

Weaver met with Tibbetts on three occasions, each meeting lasting between two and two

and a half hours. Apart from Tibbetts’ own unsworn statement to the jury, Dr. Weaver

was the only witness called during the penalty phase, and he testified primarily as to

Tibbetts’ upbringing and his difficulties with drugs and alcohol.

Dr. Weaver characterized Tibbetts’ childhood as “miserable,” detailing his

parents’ use of drugs and his father’s abuse of alcohol. Dr. Weaver testified that Tibbetts

was removed from his parents’ home and placed into foster homes. Dr. Weaver

described those foster homes as “punitive” and related that Tibbetts’ sister had said that

Tibbetts and his brothers “were tied in bed at night so they would not be any problem.

No sheets, no pillows, no pillow case or anything. Treated more like animals. There

wasn’t any touching of him or the other sibling. Matter of fact, there was no touching

even with his own parents.” Dr. Weaver testified that Tibbetts was “essentially damaged

goods when he was as [young] as five years old,” and testified that his formative years

“were certainly lacking in most respects.” Dr. Weaver stated that Tibbetts had trouble

controlling his impulses, and attributed that trouble to his difficult upbringing. Dr.

Weaver testified that Tibbetts never received any psychiatric testing or treatment while

a child, even though he was in the care of the state.

Dr. Weaver testified that Tibbetts started using drugs and alcohol when he was

a fourteen-year-old resident of General Protestant Orphan Home. He had been playing

high school football and was injured during a game. Dr. Weaver testified that Tibbetts’

drug use began shortly after the injury; that Tibbetts entered a drug treatment facility in

approximately 1993, and was able to remain sober for a while; but that a workplace

injury required heavy painkillers which led to his return to drug abuse. Dr. Weaver also

testified that Tibbetts’ substance abuse led to the end of a common-law marriage, and

was exacerbated by a second marriage to a woman who also abused drugs and died

shortly after they married.

Dr. Weaver testified that he administered the Minnesota Multiphasic Personality

Test II to Tibbetts and learned that he was “an individual with limited personality


resources or a personality control. That he was subject to instances of explosiveness

rage. And that, particularly, with the use of alcohol or with drugs, he would have no

ability to control the impulses which he might feel.” According to Dr. Weaver, the test

results also suggested that “he might exhibit features of hysterical episode. For example,

he might even have dissociative episodes which he might do things which he would have

no recall for later.” Dr. Weaver testified that, on the night of the murders, Tibbetts

experienced just such a dissociative reaction, which comports with Tibbetts’ own

testimony at trial that he remembered nothing of the night of the murders. Dr. Weaver

also testified that Tibbetts had a reduced capacity either to appreciate the criminality of

his actions or to refrain from those activities.

Dr. Weaver testified that Tibbetts could barely control his behavior while under

stress when he was sober, and that his use of some combination of alcohol or drugs was

“just like an explosion waiting to happen.” Dr. Weaver explained that Tibbetts could

become a productive individual if he was able to receive treatment in a prison setting,

which would diminish his propensity for inappropriate violence.

The jury recommended that Tibbetts be given a sentence of death for the murder

of Hicks and a sentence of life imprisonment without parole for the murder of Crawford.

The trial court adopted the recommendation of the jury on August 27, 1998, sentencing

Tibbetts to ten years for aggravated robbery, life without parole on the murder

conviction, and death for the three aggravated murder convictions. Tibbetts appealed

his conviction and sentence to the Ohio Supreme Court, alleging fifteen claims for relief.

The Ohio Supreme Court denied all of Tibbetts’ claims and affirmed the conviction and

sentence, after re-weighing all of the aggravating and mitigating factors. Tibbetts then

unsuccessfully sought post-conviction relief in state court, and the Ohio Supreme Court

declined further review. Tibbetts filed an application to re-open his direct appeal, which

was also denied.

In February 2003, Tibbetts filed a petition for a writ of habeas corpus in the

district court. The district court denied his petition, but granted a COA on three claims.

First, Tibbetts claims that his trial counsel was ineffective for failing to develop and


present evidence of Tibbetts’ mental status at the time of the crime during the penalty

phase. Tibbetts argues that he was entitled to the have a pharmacological expert testify

as to the effect of alcohol and drugs on Tibbetts’ mental state and, specifically, his

ability to control his rage impulse. Second, Tibbetts claims that his trial counsel was

ineffective for failing to present mitigating evidence at the penalty phase. Tibbetts

argues that trial counsel failed to make a reasonable investigation into Tibbetts’

childhood, failed to provide any evidence to corroborate the testimony offered by Dr.

Weaver, and that, consequently, vital information about Tibbetts’ childhood was never

heard by the jury. Third, Tibbetts argues that his appellate counsel was ineffective for

failing to raise, on direct appeal to the Ohio Supreme Court, that the trial court failed to

consider valid mitigation evidence. Tibbetts argues that the trial court failed to consider

a number of factors that were recognized by the Ohio Supreme Court, and that the Ohio

Supreme Court’s re-weighing of mitigation factors was insufficient to cure the error.

ANALYSIS

We review a district court’s denial of a petition for writ of habeas corpus de

novo. Tolliver v. Sheets, 594 F.3d 900, 915 (6th Cir. 2010). Because Tibbetts filed his

petition after April 24, 1996, it is subject to the requirements of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). Carter v. Mitchell, 443 F.3d 517, 524

(6th Cir. 2006). Under AEDPA, a writ may not be granted unless the state court’s

adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court; or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceedings. 28 U.S.C. § 2254(d)(1)-(2). Factual determinations made by the state

courts are presumed to be correct unless rebutted by clear and convincing evidence. Id.

§ 2254(e)(1).

“A state court renders an adjudication ‘contrary’ to federal law when it ‘arrives

at a conclusion opposite to that reached by [the Supreme] Court on a question of law’

or ‘decides a case differently than [the Supreme] Court has on a set of materially


indistinguishable facts.’” Biros v. Bagley, 422 F.3d 379, 386 (6th Cir. 2005) (quoting

Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “A state court unreasonably applies

Supreme Court precedent ‘if the state court identifies the correct governing legal rule . . .

but unreasonably applies it to the facts of the particular prisoner’s case.’” Barnes v. Elo,

339 F.3d 496, 501 (6th Cir. 2003) (quoting Williams, 529 U.S. at 407). “In order for a

writ to issue, we must determine both that the state court incorrectly applied the relevant

Supreme Court precedent and that this misapplication was objectively unreasonable.”

Tolliver, 594 F.3d at 916.

We emphasize that AEDPA sets forth a heavy burden for a petitioner to

overcome. “The question under AEDPA is not whether a federal court believes the state

court’s determination was incorrect but whether that determination was unreasonable—a

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). A state

court determination is not unreasonable “simply because [a federal court] concludes in

its independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. 362,

411 (2000). Rather, the state court’s application of clearly established Supreme Court

precedent must be “objectively unreasonable.” Woodford v. Viscotti, 537 U.S. 19, 24-25

(2002).

When reviewing ineffective-assistance-of-counsel claims, we engage in a two-

part inquiry.

First, the defendant must show that counsel’s performance was deficient.This requires a showing that counsel made errors so serious that counselwas not functioning as “counsel” guaranteed the defendant by the SixthAmendment. Second, the defendant must show that the deficientperformance prejudiced the defense. This requires showing thatcounsel’s errors were so serious as to deprive the defendant of a fair trial,a trial whose results are reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is

constitutionally deficient if it falls below an objective standard of reasonableness.

Phillips v. Bradshaw, 607 F.3d 199, 208 (6th Cir. 2010). “The burden is on the

defendant to make such a showing by identifying the acts or omissions of counsel that


are alleged not to have been the result of reasonable professional judgment,” id. at 209,

and “a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689. To

establish prejudice, Tibbetts must show that a reasonable probability exists that, but for

counsel’s deficient performance, the result of the proceedings would have been different.

Phillips, 607 F.3d at 217.

Our review utilizes both the Strickland and AEDPA standards. Even if we were

to conclude that counsel’s performance fell below an objective standard of

reasonableness, and that a reasonable probability exists that, but for that failure, the

result of the proceeding would have been different, we must still ask whether the state

court’s conclusion to the contrary was “objectively unreasonable.”

I. Failure to develop and present evidence of Tibbetts’ mental state

Tibbetts argues that his trial counsel was constitutionally deficient because he

failed to call an expert in pharmacology during the penalty phase. At an evidentiary

hearing before the district court, Tibbetts presented the testimony of Charles T. Kandiko,

Ph.D., a pharmacologist, and Janice Ort, Psy.D., a clinical psychologist. At the hearing,

Dr. Kandiko testified that he believed that Tibbetts was impaired the day of the murders,

and that his aggressive actions were an effect of the combination of cocaine and alcohol.

Dr. Kandiko also testified that it is possible that memory can be affected by ingesting

various substances, and that there is evidence that someone could have an aggressive

period while under the influence of cocaine, and then not have any memory of it later.

Dr. Ort conducted additional psychiatric tests on Tibbetts, to test his mental state. She

testified that a full understanding of Tibbetts’ mental state would only have been

possible with the input of an expert pharmacologist. Dr. Ort offered additional testimony

regarding Tibbetts’ mental state, based on the testimony offered by Dr. Kandiko and the

additional tests she conducted.


1Not only were the claims in White virtually identical to those presented here, but the experttestimony at issue was to be offered by Drs. Kandiko and Ort, the same experts who testified at theevidentiary hearing before the district court.

In White v. Mitchell, 431 F.3d 517 (6th Cir. 2005), this court rejected a claim

almost identical to the one brought here,1 stating that we “[did] not find a meaningful

difference in the two diagnoses as they pertain to the legal considerations relevant here,

and therefore, we find that [Petitioner] cannot show prejudice as a result of his trial

counsel’s performance.” Id. at 529-30. Dr. Weaver’s testimony covered each subject

Petitioner claims was necessary for a constitutionally adequate defense, including that

Tibbetts’ use of drugs and alcohol was an explosion waiting to happen, and that Tibbetts

was unable to control his rage response while intoxicated. Tibbetts argues, however, that

Dr. Weaver could not have provided the detailed testimony needed because he was not

a trained pharmacologist. For the purposes of the penalty phase of Tibbetts’ trial, this

is a distinction without a difference. See, e.g., Clark v. Mitchell, 425 F.3d 270, 285 (6th

Cir. 2005) (holding that trial counsel was not ineffective for failing to retain a

pharmacologist because a mental health expert testified at trial about the defendant’s

drug addiction).

We cannot conclude that a habeas petitioner is entitled to the testimony of every

qualified expert who might possess some specialized knowledge regarding the

petitioner’s case. Because there is no meaningful difference between the testimony of

Dr. Weaver and the proposed testimony of Dr. Kandiko, at least as they pertain to the

legal considerations before the trial court during the penalty phase, Tibbetts cannot show

prejudice as a result of his trial counsel’s performance. We therefore affirm the district

court’s denial of relief on this claim.

II. Failure to investigate and present mitigating evidence at the penalty phase

In his second claim, Tibbetts argues that trial counsel failed to conduct an

adequate investigation into his past. A more thorough investigation, Tibbetts argues,

would have allowed greater detail regarding his childhood to be presented to the jury.

Tibbetts also faults his trial counsel for failing to call any witnesses to corroborate the


2While the dissent is able to cite several cases as examples of performance by counsel that goabove and beyond the constitutional minimum, Dissent at 10–11, these cases are not useful for establishingwhat indeed the constitutional minimum is, and whether or not Tibbetts’ counsel fell below that standard.

testimony of Dr. Weaver. When the adequacy of trial counsel’s investigations are at

issue we must consider the extent to which limitations on the investigation are supported

by reasonable professional judgments. Strickland, 446 U.S. at 690. “In other words,

counsel has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Id. As stated previously, we must

apply “a heavy measure of deference to counsel’s judgments” and Tibbetts “must

overcome the presumption that, under the circumstances, challenged action might be

considered sound trial strategy.” Id. at 689.

Tibbetts relies heavily on our case law that establishes that trial counsel may be

constitutionally deficient if an investigation is not conducted in preparing mitigation

evidence. See, e.g., Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir. 1996) (declaring that

trial counsel was objectively unreasonable when they “never took the time to develop

[mitigation evidence]” and “made virtually no attempt to prepare for the sentencing

phase of trial”). However, the record here clearly shows that trial counsel engaged in

an investigation of mitigating factors, including Petitioner’s family history,

psychological background, and every other category to which Petitioner now claims he

was entitled. While trial counsel certainly could have conducted a more thorough

investigation, we cannot say that the investigation was constitutionally deficient.2

Moreover, Dr. Weaver testified at length about the awful state of Tibbetts’

childhood. As noted, Dr. Weaver testified that Tibbetts’ parents both used drugs and

that Tibbetts was removed from his home at an early age and placed into foster homes.

Dr. Weaver also painted a grim picture of Tibbetts’ life in those foster homes,

concluding that he was treated more like an animal, tied up at night, etc. While it is true

that Dr. Weaver’s testimony did not reveal some details contained in additional affidavits

now offered by Tibbetts, including affidavits from his sister and a female friend of

Tibbetts at the General Protestant Orphan home, Dr. Weaver did not diminish or

downplay the difficulties experienced by Tibbetts during his childhood. Tibbetts argues,


however, that the testimony of Dr. Weaver should have been supplemented by testimony

from Tibbetts’ family members. But affording trial counsel a “heavy measure of

deference,” we cannot conclude that there is no conceivable trial strategy that would

present evidence of Tibbetts’ childhood through a mental health expert, as opposed to

friends and family members, who might be seen as having an incentive to stretch the

truth in order to save Tibbetts’ life.

Furthermore, “in order to establish prejudice, the new evidence that a habeas

petitioner presents must differ in a substantial way—in strength and subject

matter—from the evidence actually presented at sentencing.” Hall v. Mitchell, 400 F.3d

308, 319 (6th Cir. 2005). The evidence in the affidavits Tibbetts now offers does not

meet this test, but is cumulative, albeit somewhat more detailed. The new evidence does

not differ in subject matter—much less “in a substantial way”—from the evidence

already presented at sentencing. It covers the exact same subject, namely, the difficult

and abusive childhood that Tibbetts suffered. Certainly this new evidence cannot be

described as “shocking, disheartening, and utterly disturbing,” the kind of evidence that

we have held would generally support a finding of prejudice warranting habeas relief.

See Beuke v. Houk, 537 F.3d 618, 646 (6th Cir. 2008).

While the dissent effectively reviews the additional, cumulative evidence, it fails

to explain how such evidence, had it been presented, would have done anything to

change the jury’s perception of Tibbetts’ moral culpability for such a brutal and horrific

crime. See Jells v. Mitchell, 538 F.3d 478, 498 (6th Cir. 2008) (“Prejudice is established

where, taken as a whole, the available mitigating evidence might well have influenced

[the sentencer’s] appraisal of [the petitioner’s] moral culpability.”) (internal quotation

marks omitted). This case is similar to Phillips v. Bradshaw, 607 F.3d 199 (6th Cir.

2010). There, the petitioner, Phillips, had been convicted of the rape and aggravated

murder of a three year old girl. The jury recommended a sentence of death for Phillips.

At the sentencing phase, Phillips’ counsel focused on Phillips’ good character and good

behavior in the community. Id. at 210. A psychologist testified as to Phillips’ low IQ,

low tolerance for stressful situations, and need for a structured environment. Id. at 211.


The psychologist specifically testified that there was no sign that Phillips had grown up

in a physically or sexually abusive environment. Id. In his habeas petition, Phillips

claimed ineffective assistance of counsel, pointing to Child Service Bureau reports, the

testimony of various half-siblings, and another psychologist’s report that would have

detailed an abusive childhood. Id. at 211-15. This court had no problem in deciding that

given the brutality of the crime, such additional evidence—even covering substantially

different subject matter—was not enough to conclude that the state court was objectively

unreasonable in holding that there was no reasonable probability that the outcome of the

sentencing would have been different. Id. at 219.

Here, the brutality of Tibbetts’ crimes would have completely overwhelmed any

additional, cumulative mitigation evidence of Tibbetts’ difficult childhood. Tibbetts

murdered two people—his own wife and a sixty-seven year old disabled man, suffering

from emphysema, breathing from an oxygen tank. When the police found James Hicks’

dead body, they found no fewer than three knives that Tibbetts had used still sticking in

his body, with another blade broken off in his back. There were no signs that the

disabled Hicks put up a fight. Tibbetts own wife, Susan Crawford, was able to fare

slightly better, as her broken arm indicates that she may have attempted to fight off

Tibbetts for a time. But that attempt failed and she succumbed to the attack, dying in a

pool of her own blood, skull cracked, pieces of her brain scattered on the floor. Tibbetts

also inflicted multiple knife wounds upon his wife’s body, at least nine of which came

after he had already killed her.

But there is no need to substitute our own judgment on the matter. The state

court already concluded that such additional evidence would have made no difference

in the outcome—one life sentence and one sentence of death. We cannot say that the

court was “objectively unreasonable” in doing so. Tibbetts has failed to overcome the

presumption that his trial counsel acted in accordance with a sound trial strategy, and he

cannot show prejudice from the trial counsel’s failure to present the evidence Tibbetts

now offers. Moreover, Tibbetts cannot show that the state court applied these standards


3That rule, of course, incorporates a prohibition on a trial court’s express refusal to considerrelevant mitigating evidence. However, the rule does not require a trial court to make an extensive list ofall possible factors in mitigation, and then address each factor in turn. Such a rule would, of course, bean invitation to mischief, for clever counsel would always be capable of finding one additional factor,however minor, that should have been included on the list.

in an objectively unreasonable manner. Accordingly, we will affirm the district court’s

denial of this claim.

III. Failure to appeal the trial court’s weighing of mitigating evidence

In this third claim, Tibbetts argues that his appellate counsel was ineffective

because he did not challenge the state trial judge’s failure to adequately consider all

mitigation evidence. According to Tibbetts, the trial court clearly erred in failing to

consider all the mitigating factors, and it was unreasonable for appellate counsel to fail

to raise on direct appeal the trial court’s error. Applying the heavy measure of deference

to counsel’s decisions required by AEDPA, we conclude that this claim fails because it

is unclear that the trial court did not consider the mitigating factors. Moreover, even if

the trial court erred and counsel was unreasonable in failing to raise the claim, there was

no prejudice because the Ohio Supreme Court cured any defect by conducting an

independent re-weighing of the mitigating and aggravating factors, and affirmed the

sentence of death.

Tibbetts argues that the trial court violated clearly established federal law by

failing to comply with the requirement that all mitigation evidence be considered at

sentencing. Eddings v. Oklahoma, 455 U.S. 104 (1982); Davis v. Coyle, 475 F.3d 761

(6th Cir. 2007). Tibbetts relies, however, on a slight misstatement of the rule established

in Lockett v. Ohio, 438 U.S. 586 (1978), and applied by the Eddings Court. The rule is

that the sentencer must be permitted to consider any relevant mitigating factor, Eddings,

455 U.S. at 112, not that the sentencer must expressly list all relevant mitigating factors.3

In Davis, we applied the rule and remanded because the trial court had excluded

mitigating evidence. Davis, 475 F.3d at 774. But the record here is devoid of any

indication that the trial court excluded any evidence. In fact, the trial court expressly


weighed a number of mitigating factors and stated clearly that it had considered all

mitigating evidence.

Plaintiff argues that the trial judge was insufficiently clear in describing all of the

mitigation evidence which was considered. In support of this argument, Plaintiff cites

to Ohio sentencing law, Ohio Rev. Code § 2929.03(F), which requires that a trial judge

state, “in a separate opinion its specific findings as to the existence of any of the

mitigating factors set forth in [Ohio statute], the existence of any other mitigating

factors, . . . and the reasons why the aggravating circumstances the offender was found

guilty of committing were sufficient to outweigh the mitigating factors.” However, even

Tibbetts acknowledges that the trial court stated that there were two statutorily required

mitigation factors present: (1) lack of capacity to appreciate the criminality of his

conduct; and (2) “any other factors that call for a penalty of less than death or to lessen

the appropriateness of the death penalty.” Ohio Rev. Code § 2929.03(B)(3) & (7).

Tibbetts points to the fact that the trial court did not find any “other factors” in

mitigation, and argues that this is evidence that the trial court failed to truly consider any

“other factors.” This is pure speculation, which fails to meet the clear and convincing

standard required to overcome the presumption of correctness afforded state trial courts’

findings of fact. 28 U.S.C. § 2254(e)(1).

Even assuming, arguendo, that the state trial judge’s sentencing opinion failed

to meet the requirements of § 2929.03(F), the Ohio Supreme Court’s independent

consideration of the mitigating evidence allegedly ignored by the trial judge cured any

error. State v. Lott, 555 N.E.2d 293, 304 (Ohio 1990). Tibbetts argues that the Ohio

Supreme Court effectively found error in the trial court’s weighing of mitigating factors

when it afforded some weight to Tibbetts’ troubled childhood and family background,

his drug use, his expressed remorse, and his ability to maintain gainful employment prior

to the work-related accident that reintroduced drugs into his life. Tibbetts, 749 N.E.2d

at 259. However, even if the Ohio Supreme Court intended to make an implied finding

of error, its express reconsideration of those very mitigating factors, and its subsequent

decision to affirm the trial court’s imposition of the death sentence cured any error.


Because the Ohio Supreme Court raised, sua sponte, and rejected the very claim that

Tibbetts argues appellate counsel should have raised on direct appeal, he cannot show

prejudice from his appellate counsel’s actions. We affirm the district court’s denial of

relief on this claim.

CONCLUSION

Accordingly, and for the reasons set forth above, we AFFIRM the district court’s

denial of Petitioner’s habeas petition.


___________________

DISSENT___________________

KAREN NELSON MOORE, Circuit Judge, dissenting. Raymond Tibbetts

committed a reprehensible crime, and he should be punished for the acts for which the

jury found him guilty. Despite his guilt, however, his death sentence is more than

troubling. Tibbetts was sentenced to death by a jury that was not presented with

mitigation evidence concerning Tibbetts’s mentally and physically abusive childhood

that was key to understanding Tibbetts’s culpability and, by extension, evidence that was

instrumental to determining whether he should live or die. Because I believe that

Tibbetts’s counsel failed to provide constitutionally adequate representation during the

penalty phase of his capital proceeding, and because I believe that Tibbetts was

prejudiced by counsel’s actions, I would grant his petition for a writ of habeas corpus on

this ground. I must therefore dissent.

“‘The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.’” Broom v. Mitchell, 441

F.3d 392, 408 (6th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 686

(1984)). To prevail on a claim of ineffective assistance of counsel under Strickland,

Tibbetts must first show that his “counsel’s performance was deficient”; that is, that

“counsel’s representation fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 687, 688. Even assuming deficient representation, however,

Tibbetts is also required to show that the “deficient performance prejudiced the defense.”

Id. at 687. Moreover, Tibbetts is entitled to relief only if the Ohio courts’ “rejection of

his claim of ineffective assistance of counsel was ‘contrary to, or involved an

unreasonable application of’ Strickland, or it rested ‘on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.’” Porter v.

McCollum, 130 S. Ct. 447, 452 (2009) (per curiam) (quoting 28 U.S.C. § 2254(d)).

Tibbetts argues that his counsel’s failure “to investigate and present” to the jury


“compelling mitigating evidence” of Tibbetts’s upbringing and childhood abuse

amounted to ineffective assistance of counsel such that he warrants relief from his death

sentence. Appellant Br. at 23. For the reasons discussed below, I agree with Tibbetts’s

claim that counsel’s representation at the mitigation phase was constitutionally

inadequate and that the state courts unreasonably applied Supreme Court precedent when

rejecting Tibbetts’s claim on this ground.

I. ANALYSIS

A. Counsel’s Deficient Performance

Under the prevailing professional standards in existence at the time of trial,

Tibbetts’s “counsel had an ‘obligation [either] to conduct a thorough investigation of

[Tibbetts’s] background,’” Porter, 130 S. Ct. at 452–53 (quoting Williams v. Taylor, 529

U.S. 362, 396 (2000)), or to make a reasonable decision that such an investigation was

unnecessary, Wiggins v. Smith, 539 U.S. 510, 521 (2003). Counsel’s “ultimate

presentation” of mitigation evidence “to the jury might have been justified as the product

of strategic choice” if “[b]uttressed by a reasonably adequate investigation,” but defense

counsel was “‘not in a position to make . . . reasonable strategic choices’” when “‘the

investigation supporting [counsel’s] choices was unreasonable.’” Johnson v. Bagley,

544 F.3d 592, 603 (6th Cir. 2008) (quoting Wiggins, 539 U.S. at 536) (alterations

omitted). Tibbetts’s counsel plainly did not engage in conduct sufficient to satisfy the

constitutional norm, and I would hold that Tibbetts has succeeded in showing that

counsel’s performance fell below an objective standard of reasonableness.

It is true that the instant case is distinguishable from some of our more egregious

examples of deficient performance in that Tibbetts’s counsel did engage in some

investigation in preparation for the penalty phase of Tibbetts’s trial. The post-conviction

record indicates that counsel hired a mitigation specialist, Jim Crates. Joint Appendix

(“J.A.”) at 13 (Release Form); id. at 14–15 (Crates Letter). The record also indicates

that a little over one month prior to Tibbetts’s penalty-phase hearing, Crates interviewed

Tibbetts’s ex-girlfriend and the mother of his son, Robin Amburgey. 6th Cir. Dkt. Doc.


006110643575 (Trial Ex. N, Crates Notes). Notwithstanding counsel’s retention of

Crates and Crates’s conversation with Amburgey, however, counsel’s preparation and

investigation stands out more for what it utterly lacked. First, neither counsel nor Crates

interviewed even one member of Tibbetts’s family prior to the day of the

commencement of the mitigation phase despite the fact these family members could have

provided counsel with extremely relevant information concerning Tibbetts’s abusive

childhood. It is clear that counsel knew the whereabouts of at least two family

members—Tibbetts’s father and sister—because, according to an affidavit from

Tibbetts’s father, Stanley Tibbetts, Crates contacted him sometime “before Raymond’s

trial,” and said that he would like to speak with Stanley about Tibbetts. Although

Tibbetts’s father agreed to speak with counsel, Crates “never contacted [Stanley] again,”

and neither Crates nor trial counsel “[]ever showed up to talk.” Tibbetts, S. Aff. at ¶ 2.

According to his post-conviction affidavit, the only reason that Tibbetts’s father did not

speak with counsel was because no one ever asked. “No ‘reasonable professional

judgment’ could have supported a decision not to interview” Tibbetts’s father, and the

failure to do so amounted to deficient performance. Johnson, 544 F.3d at 600 (quoting

Strickland, 466 U.S. at 690, and concluding that counsel was deficient in failing to

interview the petitioner’s “mother, not a distant aunt or neighbor”); Jells v. Mitchell, 538

F.3d 478, 493 (6th Cir. 2008) (finding deficient performance where counsel “interviewed

only three family members, neglecting to speak with many other family members who

had lived with [the petitioner] and were available”).

With regard to Tibbetts’s sister, Suzanne Terry, the record indicates that Crates

also contacted her but that he did so “the day before [she] was needed to testify in court

on [her] brother’s behalf,” Terry Aff. at ¶ 2 (emphasis added), which hardly left

sufficient time for counsel to prepare a mitigation strategy surrounding whatever

information Terry could provide. See Beuke v. Houk, 537 F.3d 618, 644 (6th Cir. 2008)

(“We will generally find that an attorney has rendered deficient performance if he waits

until after a conviction to begin his mitigation investigation.” (citing cases)); Jells, 538

F.3d at 493–94 (same). Furthermore, there is no indication that counsel or Crates

actually spoke with Terry once they contacted her. Instead, the evidence reveals merely


that Crates referred Terry to Dr. Weaver and that Terry spoke with Dr. Weaver on the

morning of the penalty-phase hearing. Even assuming that Dr. Weaver relayed all of

Terry’s information to counsel in the few hours immediately preceding the hearing,

counsel certainly would not have had time to incorporate that information into any

reasonable mitigation theory or to followup on any leads that Terry’s information

uncovered.

It is also important to note that the only reason that Tibbetts’s sister did not

testify was a direct result of counsel’s dilatory investigative tactics. Again, it is worth

emphasizing that Crates did not contact Terry until the day before the hearing. Terry

Aff. at ¶ 2. Despite the short notice, Terry agreed to testify on the condition that her

testimony not be filmed. Anticipating that this might prove problematic, Terry also

offered to testify on film if she were given the opportunity to notify her employer and

her clients that she was participating in a capital case and explain the matter.

Presumably because the hearing was scheduled to begin the next day, Crates told Terry

that accommodations were impossible and that it would be “good enough” for her to

speak with Dr. Weaver and that Dr. Weaver would relay her testimony to the jury. Id.

Terry affirmed that she would have testified without qualification had she known that

the details of her conversation with Dr. Weaver would not have reached the jury. As

with counsel’s failure to interview Tibbetts’s father, no reasonable judgment justified

counsel’s decision to wait until the day before the mitigation hearing to contact

Tibbetts’s sister to request that she testify.

Second, in addition to failing to speak with anyone in Tibbetts’s family, counsel

made no real “attempt to locate significant persons from [Tibbetts’s] past who may have

provided valuable testimony regarding mitigating factors.” Powell v. Collins, 332 F.3d

376, 399 (6th Cir. 2003). As the affidavits from Tibbetts’s childhood friend, Sandra

Nunley, and his Alcoholics Anonymous (“AA”) sponsor, Keith Riddell, indicate,

however, there were at least two non-related persons willing to provide such

information. In fact, Crates even recognized this, writing a letter to counsel two months

before the penalty phase stating that there was “Limited or No Documentation” from AA


and that someone “must interview [Tibbetts’s AA] sponsor.” J.A. at 14 (Crates Letter).

According to Riddell, however, no one ever did. In short, counsel’s failure even to “take

the first step of interviewing witnesses,” Porter, 130 S. Ct. at 453, such as Tibbetts’s

father and friends, and to do so in a timely manner, in the case of Tibbetts’s sister, was

unsupportable, objectively unreasonable, and, as a result, plainly constitutionally

deficient, cf. Bobby v. Van Hook, 130 S. Ct. 13, 18–19 (2009).

It is true that Tibbetts’s counsel did request, approximately one month prior to

the start of trial, several records concerning Tibbetts’s history and childhood, which

included documents from the Ohio Department of Human Services, St. Elizabeth

Hospital, Tibbetts’s previous employers and high school, as well the Ohio Department

of Corrections. And it is also true that these records were provided to the jury to review

during its sentencing deliberations. But the fact that counsel requested these records and

provided them to the jury does not overcome counsel’s clear investigative deficiencies.

As an initial matter, it is unlikely that many of these documents could have been much

help to Tibbetts, regardless of their substantive content. Many of them are illegible from

years of copying; they are disorganized, at least as submitted in the record on appeal; and

they cover literally decades of foster-care placements and admissions to various

institutions without any accompanying explanation to place them in context.

Furthermore, the records concern not only Tibbetts’s upbringing but also that of his

numerous siblings who, depending on the year, were not even living with Tibbetts,

which made some of the records simply irrelevant, or at least less clearly pertinent. As

we have stated previously, “it hardly constitutes a reasonable investigation and

mitigation strategy simply to obtain Human Services records from the State, then dump

the whole file in front of the jury without organizing the files, reading them, eliminating

irrelevant files or explaining to the jury how or why they are relevant.” Johnson, 544

F.3d at 602.

Even assuming that counsel was not deficient in the handling of the records—i.e.,

that they were legible, organized, and clearly relevant such that no explanation from

counsel was required—the substantive content of the records serves only to highlight


counsel’s investigative deficiencies as opposed to insulate and justify counsel’s actions.

The records themselves contain very little definitive information about whether Tibbetts

suffered abuse as a child, but they do contain ample speculative statements from social

workers and other officials that plainly would have put reasonable counsel on notice that

further investigation into Tibbetts’s upbringing was required. For example, the Ohio

Department of Human Services records indicate that Tibbetts was “afraid of water

because someone had tried to hold him under,” 6th Cir. Dkt. Doc. 006110646585 at 15;

that social workers were concerned that the Merrimans, Tibbetts’s first foster-care

family, were “not adequate[ly] nourishing the children,” id. at 20; and that there were

allegations from the older Tibbetts children that the “younger children,” including

Tibbetts, “were actually abused” at the Merrimans’ home, 6th Cir. Dkt. Doc.

06110646582 at 38. The records also recounted the detailed allegations of abuse leveled

by Tibbetts’s biological mother and Tibbetts’s sister. As recounted by one state social

worker:

[Tibbetts’s mother believes that] Mrs. Merriman [does not] feed[Tibbetts’s younger brother] enough, so his brain is suffering. [Tibbetts’smother] also had a great deal to say about the poor treatment the childrenare receiving at the Merriman’s, saying Suzanne is now telling her themany cruelties they received; couldn’t watch TV, were beaten if theysoiled their pants, were tied in bed, didn’t get to eat after school—had togo outside or to bed, beat Suzanne’s ear—if she didn’t cry, beat herharder. Suzanne says she couldn’t talk before because she would bebeaten if anything got back to the Merrimans. Ricky verifies thesestatements adding the Merrimans had eggs or french toast for breakfast,but the Tibbetts always had oatmeal. [Tibbetts’s mother] said all thechildren are skeletons now.

6th Cir. Dkt. Doc. 006110646585 at 25. In addition to these very clear red flags, there

were also ample cryptic statements throughout the various records hinting at the

existence of abuse, including the fact that the state social workers refused to allow the

Tibbetts children to be taken to the Merrimans, even for a visit, after they had been

removed from that placement, and at least one social worker suspected that Tibbetts’s

time with the Merrimans “created [his] nervous disposition,” 6th Cir. Dkt. Doc.


006110646583 at 6, and noted that contact with the Merrimans led Tibbetts to rock

himself to sleep at night.

Additionally, despite the majority’s assertion to the contrary, the fact that the sole

mitigation witness, forensic psychologist Dr. Glen Weaver, testified at Tibbetts’s

mitigation hearing and conveyed some of the information that Tibbetts’s sister had

provided him just hours prior to his testimony and some of the information that was

alluded to in the various records does not save counsel’s eleventh-hour investigation.

See Johnson, 544 F.3d at 602 ( “[A]n unreasonably truncated mitigation investigation

is not cured simply because some steps were taken prior to the penalty-phase hearing and

because some evidence was placed before the jury.” (citing Rompilla v. Beard, 545 U.S.

374, 382–83 (2005)). To be sure, Dr. Weaver conducted a thorough psychological exam

and was qualified to testify as to Tibbetts’s mental state at the time of the crime, which

was necessary for the mitigation theory that the defense decided to present, but Dr.

Weaver’s understanding of the reality of Tibbetts’s childhood was extremely limited,

and he was not equipped to testify as to that aspect of Tibbetts’s social history. For

example, to obtain information about Tibbetts’s past and prepare for the mitigation

hearing, Dr. Weaver merely reviewed the documents introduced in the penalty phase,

J.A. at 1132–33 (Weaver Test.), and met with Tibbetts for approximately six hours, id.

at 1120–21. Like counsel, Dr. Weaver did not interview Tibbetts’s family members or

close friends prior to the day of the hearing and surprisingly voiced a strong aversion to

doing so. See Mason v. Mitchell, 543 F.3d 766, 777 (6th Cir. 2008) (finding problematic

the fact that a psychiatrist “based his examination and report solely on interviewing [the

defendant] himself and . . . did not cover [his] background or childhood in any great

detail”). In fact, when the prosecutor noted that Dr. Weaver had failed to interview third

parties when evaluating Tibbetts, Dr. Weaver testified that it “certainly” was not his job

to do “independent investigation” and that doing so was “rare” and perhaps

inappropriate. J.A. at 1185–86 (Weaver Test.).

In short, counsel’s investigation fell below the then-prevailing professional

standards, and the fact that counsel uncovered and introduced some evidence does not


1Tibbetts’s former girlfriend and his son’s mother, Robin Amburgey, testified briefly during theguilt phase of the trial for the prosecution, and this testimony was submitted to the jury in mitigation.Amburgey’s testimony during the guilt phase of the trial did provide some “humanizing” details withregard to Tibbetts. She mentioned that Tibbetts had periods of sobriety and had attempted to kick his drughabit, J.A. at 404, 408 (Amburgey Test.), that Tibbetts was never violent towards her or their son, id. at405, and that Tibbetts cared for their son, played with him, and was a good father, id. at 406–07. But sheprovided no testimony concerning Tibbetts’s upbringing.

excuse counsel’s failure to engage in basic preparation, such as conducting interviews

with ready and willing family members and friends and organizing and explaining any

relevant state records regarding Tibbetts’s childhood. Had counsel contacted Tibbetts’s

family and friends at some point prior to the mitigation hearing, Dr. Weaver, who knew

very little about Tibbetts’s background, would not have been tasked with presenting the

sole evidence about Tibbetts’s upbringing, which he amassed, in substantial part, during

an interview hastily conducted with Tibbetts’s sister on the morning of the hearing.

Tibbetts’s father, his sister, his best childhood friend, and his AA sponsor could have

each provided material details about Tibbetts’s background and humanized Tibbetts to

a degree that Dr. Weaver simply was not able to do.1

Given counsel’s failure to interview even the most obvious of mitigation

witnesses, this case is plainly distinguishable from those cases where the Supreme Court

and this Circuit have held that counsel’s investigation and presentation of mitigation

evidence was the result of a reasonable decision and did not amount to deficient

performance. Cf. Wong v. Belmontes, 130 S. Ct. 383, 387 (2009) (indicating that the

mitigating evidence that counsel presented “was substantial,” where defense counsel

“put nine witnesses on the stand[,] . . . [a] number of those witnesses highlighted [the

defendant’s] ‘terrible’ childhood,” including the father’s alcoholism and abuse, the very

poor conditions of the defendant’s house, his poor performance in school, and the death

of his younger sister and grandmother with whom he had a strong relationship); Van

Hook, 130 S. Ct. at 18–19 (2009) (holding that counsel’s mitigation investigation was

adequate with regard to both timing and scope where counsel “spoke nine times with

[the defendant’s] mother (beginning within a week after the indictment), once with both

parents together, twice with an aunt[,] . . . and three times with a family friend,” met with

several experts “more than a month before trial,” enlisted a mitigation expert “when the


trial was still five weeks away,” and could not have been expected to interview “distant

relatives”); Phillips v. Bradshaw, 607 F.3d 199, 209–10 (6th Cir. 2010) (“In his efforts

to acquire mitigating evidence, [the attorney] talked with [the defendant’s] mother and

father, at least one of his siblings and one of his half-siblings, his grandparents,

neighbors, and former teachers. [The attorney] obtained [the defendant’s] school records

and reviewed some [Child Services Bureau] records relating to the [the defendant’s]

family,” and at the mitigation hearing the defendant’s neighbor, grandmother, brother,

and father testified); Sneed v. Johnson, 600 F.3d 607, 610 (6th Cir. 2010) (distinguishing

the Supreme Court’s recent decision in Porter and holding that counsel’s investigation

of mitigating evidence was sufficient when “counsel produced 17 witnesses, including

three psychological experts, at least some of whose testimony concerned [the

defendant’s] mental health and severely troubled childhood”). I would thus conclude

that Tibbetts’s counsel’s performance fell below an objective standard of reasonableness,

and counsel was constitutionally deficient.

B. Counsel’s Deficient Performance Prejudiced Tibbetts

Beyond showing that counsel was deficient for failing to investigate and present

mitigating evidence, Tibbetts must further show that counsel’s actions were prejudicial.

The majority concludes that Tibbetts failed to demonstrate prejudice because any

additional evidence that counsel failed to uncover or present would have been

cumulative.

We have stated that we “reject a requirement that any later-identified cumulative

mitigating evidence must have been introduced in order for counsel to be effective.”

Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir. 2005); id. at 286–90 (surveying cases); see

also Beuke, 537 F.3d at 645. And, according to our case law, “‘to establish prejudice,

the new evidence that a habeas petitioner presents must differ in a substantial way—in

strength and subject matter—from the evidence actually presented at sentencing.’”

Broom, 441 F.3d at 410 (quoting Clark, 425 F.3d at 286) (alteration omitted). The

question is thus whether the additional mitigation evidence concerning Tibbetts’s

mentally and physically abusive childhood and upbringing differs in strength and subject


matter from the evidence introduced such that there is “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. As explained below, I believe that the evidence

does demonstrate that Tibbetts was prejudiced and that a contrary conclusion is

unreasonable.

At mitigation, Dr. Weaver’s testimony on Tibbetts’s abusive childhood consisted

of the following:

[Tibbetts] had a miserable childhood. Horrible. . . . The parents wereboth drug users. His father was, in addition to an alcoholic. He and twoof his siblings, brothers, all of them who have been in difficulty with thelaw, were cared for by a 10-year-old sister, whom I talked with thismorning incidentally. And when the Welfare Department—or HumanServices found out about this, or when it was reported, they stepped in.And there was a continuing contact with Human Services from 1961 or‘62, throughout those years, and he and his brothers were taken for fosterhome placement. Not very happy ones, according to his sister. . . . Andhe had several placements . . . which were not satisfactory. Like, theywere too punitive with him. Matter of fact, the sister reported that he andhis two brothers were tied in bed at night so they would not be anyproblem. No sheets, no pillows, no pillow case or anything. Treatedmore like animals. The[re] wasn’t any [nurturing] of him or the othersibling.

J.A. at 1125–26 (Weaver Test.). Tibbetts’s unsworn statement regarding his childhood

revealed that Tibbetts did not “like to talk about [his] childhood because [he] never did

like it,” that he “didn’t like going home” because he “didn’t like to hear the hollering[

and] the belts,” and that “there was no family love.” J.A. at 1220–22 (Tibbetts

Statement).

The evidence discovered in post-conviction materials, however, revealed a much

more chaotic and abusive environment, including never-before-revealed details about

Tibbetts’s abuse at the hands of his biological parents. For example, Terry submitted an

affidavit disclosing that Tibbetts’s biological mother and father were “cruel” and

engaged in “extreme violence” toward the children, requiring Terry to protect Tibbetts

and the younger siblings from the blows of their parents. Terry Aff. ¶ 6. Terry also


revealed that Tibbetts’s mother and father failed to provide their children with basic

needs, leaving them “alone often without food or proper clothing,” id. ¶ 7, and the

children had to rely on people from the community to donate such items, lest they go

hungry and cold. Tibbetts’s father also “brutalized” Tibbetts’s mother, “beating her

bloody with a fan and a telephone,” id. ¶ 8, and, in general, the household where Tibbetts

lived with his biological parents “was a place of constant violence,” id. ¶ 8. In addition

to Terry’s recollection of these events, an affidavit from Tibbetts’s father submitted

during post-conviction proceedings revealed that he would have testified first-hand that

he and Tibbetts’s mother were unable to care for their children. Tibbetts, S. Aff. ¶¶ 3, 4.

Once removed from the biological household, Tibbetts did not fare any better.

One of the foster-care mothers, Ms. Merriman, was a drug addict, “wacked out of her

head,” and never took care of Tibbetts. Terry Aff. ¶ 11. In fact, far from becoming a

safe space for the already-abused Tibbetts, the foster-care mother’s own biological

children “brutalized” Tibbetts and his siblings by kicking them down the stairs, beating

them with spatulas, and burning their hands on heat registers, which sent at least one

child the hospital. Id. ¶ 12. The Merrimans essentially treated Tibbetts like an animal.

He was required to sit in the corner of the kitchen all day long until bedtime, id. ¶ 11, at

which point he was tied to the bed. Although Dr. Weaver did mention this detail,

perhaps equally disturbing is how this task was accomplished: Ms. Merriman would

lash “rope around [Tibbetts’s] waist[] that dug into [his] stomach[],” id. ¶ 11, causing

pain throughout the night. Moreover, Ms. Merriman “never fed” the children while in

the foster-care home, id. ¶ 13, and locked them outside for long periods of time without

access to a toilet, causing one of Tibbetts’s siblings to have a bowel impaction, id. ¶ 14.

Mr. Merriman also abused the Tibbetts children, and according to Terry, he attempted

to molest her sexually on at least one occasion while they were residing in the Merriman

home. Id. ¶ 14. Tibbetts’s father’s affidavit indicated that he and Tibbetts’s mother

knew that the children were being mistreated in foster care but did nothing. Tibbetts, S.

Aff. ¶¶ 3, 4. Ultimately, Tibbetts’s mother gained authorization to remove her children

from the Merrimans’ care, but she decided to take only two of them, leaving Tibbetts

behind. According to Terry, when it came time for the others to leave, her mother


ignored Tibbetts, “act[ing] like [he] did not exist,” and she “refused to even see” Tibbetts

when he came to visit. Id. ¶ 15. Tibbetts’s father confirmed that Tibbetts’s mother

simply wanted nothing to do with Tibbetts. Tibbetts, S. Aff. ¶¶ 3, 4. Perhaps Tibbetts’s

mother’s cruelty and emotional abuse was not entirely surprising, however, as post-

conviction materials also revealed that she likely had a “borderline personality” disorder

and was a “dangerous” individual. Id. ¶ 17. The State finally removed Tibbetts from

the Merriman home, and Tibbetts was placed with a second family, where he was not

treated much better. Id. ¶ 19.

The evidentiary hearing also revealed that had counsel contacted Tibbetts’s

childhood friend, Sandra Nunley, counsel would have learned that once Tibbetts exited

the foster-care system he was still denied an environment conducive to normal childhood

development. The Children’s Protestant Orphanage where Tibbetts was sent following

foster care was “very strict,” and although it was not physically abusive, the children

were not permitted to do much of anything. Nunley Aff. ¶ 3. Nunley recounted that the

people who ran the orphanage provided “no affection” or “nurturing” and there was “no

opportunity to get close to or bond with any of the adults,” id. ¶ 4, which was what

Tibbetts most desired. Moreover, Tibbetts “never received visits from anyone,” which

was “[u]nlike the other children” at the orphanage, id., and Tibbetts was never allowed

to engage in activities with friends after school or participate in normal social functions,

id. ¶ 5. Nunley also would have explained to the jury that Tibbetts so yearned for

affection that she and Tibbetts often broke the rules in order to see one another. Id.

¶¶ 6–7.

This additional evidence is not cumulative but instead adds real substance to the

story of Tibbetts’s childhood that was conveyed to the jury. For example, the

undisclosed evidence reveals Tibbetts’s mental and physical abuse at the hands of his

biological mother and father, which was not presented to the jury during the penalty

phase. Cf. Eley v. Bagley, 604 F.3d 958, 969 (6th Cir. 2010) (“Although the evidence

presented at the post-conviction hearing did go into more depth than the evidence

presented by trial counsel at sentencing, it did not cover any new subject matter and was


2The Supreme Court of Ohio’s description of the background evidence that was presented inmitigation further reveals the extent to which salient details about Tibbetts’s abuse simply were notdisclosed during the penalty phase. The entirety of the Supreme Court of Ohio’s description is as follows:

The defense presented evidence about Tibbetts’s background, which offers

not substantially more persuasive than the trial evidence.”). The additional evidence also

provides “shocking, disheartening, and utterly disturbing details about [Tibbetts’s]

upbringing,” Beuke, 537 F.3d at 646, and does not merely elaborate on a difficult

childhood that had been described already by several witnesses. See Williams, 529 U.S.

at 398 (finding prejudice where the evidence that was not disclosed provided a “graphic

description of [the petitioner’s] childhood, filling with abuse and privation”); cf. Wiles

v. Bagley, 561 F.3d 636, 639 (6th Cir. 2009) (“Most of the ostensibly new evidence

represents variations on th[e] same theme” presented at the penalty phase); Beuke, 537

F.3d at 646 (concluding that details such as the fact that the petitioner had low self-

esteem and was sheltered when growing up did not support a finding of prejudice despite

being noncumulative); Broom, 441 F.3d at 410. To the contrary, as outlined above, none

of Tibbetts’s family or friends had been interviewed or testified about the details

revealed in the post-conviction hearing, and Dr. Weaver’s description of Tibbetts’s

childhood as “miserable” or “horrible,” or even Dr. Weaver’s example of Tibbetts’s

foster family as being “too punitive” by tying the children to the bed, does not even

come close to conveying the extent and gravity of Tibbetts’s torture and abuse. The two

foster-care placements were more than just “not satisfactory,” as Dr. Weaver testified,

but rather they were abusive. In essence, “rather than being cumulative,” the evidence

that counsel failed to uncover and present “provides a more nuanced understanding of

[Tibbetts’s] psychological background and presents a more sympathetic picture of

[Tibbetts]” that is sufficient to support a finding of prejudice. Jells, 538 F.3d at 501; see

Johnson, 544 F.3d at 604 (finding prejudice where “not one witness testified about the

abuse that [the petitioner] suffered as a way of life” (internal quotation marks omitted));

cf. Broom, 441 F.3d at 410 n.27 (holding habeas relief was not warranted when the

additional mitigation evidence included “the fact that [Defendant] was placed in a

juvenile detention facility as a teenager, that a close friend of [Defendant’s] was shot and

killed, and that [Defendant’s] father was a pimp.”).2


some modest mitigating value. Dr. Weaver described Tibbetts’s childhood as“miserable” and “horrible.” Because Tibbetts’s parents were drug users, Tibbetts andhis siblings were placed in foster care at an early age. Tibbetts spent most of hischildhood living in either a foster home or an orphanage. Tibbetts eventually achievedsome success in high school as a member of the football team, but suffered a knee injurythat ended his high school football career. At an early age, however, he began a patternof getting into trouble with the authorities and eventually spent time in prison.

State v. Tibbetts, 749 N.E.2d 226, 258 (Ohio 2001).

Even assuming, however, that the majority is correct that sufficient details about

Tibbetts’s abuse were introduced via Dr. Weaver’s testimony, I remain unconvinced that

Tibbetts was not prejudiced by counsel’s deficient performance and failure to call lay

witnesses such as Tibbetts’s sister, father, and friends. First, had Tibbetts’s family and

friends testified, the evidence regarding Tibbetts’s childhood abuse would have come

directly from individuals who experienced the same abusive environment as Tibbetts and

even from one individual who actually inflicted some of the abuse. Having those

individuals testify as to what Tibbetts endured certainly would have had a greater impact

on the jury than just listening to Dr. Weaver mention Tibbetts’s childhood abuse vaguely

and in passing. Second, it is important to remember one of the State’s tactics during the

penalty phase was to challenge the legitimacy of the defense’s mention of childhood

abuse, however minimal the reference. Thus, even assuming that the testimony from the

above-mentioned lay witnesses would not have uncovered evidence different in

substance from that which was introduced—again, a proposition with which I do not

agree—the evidence certainly would have been different in strength based on its source.

Throughout the hearing, the State attempted to undermine the mitigation value of

Tibbetts’s abusive childhood by implying that the defense was fabricating any mention

of such abuse. For example, when Dr. Weaver spoke vaguely about the problems that

Tibbetts had in foster care, the prosecutor pointed out that “[t]he information [Dr.

Weaver was] telling . . . the jury [wa]sn’t in [the children’s services records]. . . . This

[information was] in a conversation [that Dr. Weaver] had with [Tibbetts’s] sister at

some other time which [the court and the jury] have nothing about.” J.A. at 1171

(Weaver Test.). The State also noted that the records contained no information about

Tibbetts’s abusive childhood, id. at 1170, and, to the contrary, indicated that the State

had monitored appropriately Tibbetts’s placement in foster care, implying that any claim


that the placements were problematic was exaggerated, if not an outright lie, id. at 1172.

As mentioned above, the State’s claim regarding the various records was not far from

the truth. Again, the records contained surprisingly little in the way of definitive

evidence that Tibbetts was raised in a mentally and physically abusive environment, and

much of the mention of abuse was couched in terms of speculation and possibilities with

social workers reporting rumors of abuse but never making any determination or

conclusion. Based on the evidence that counsel submitted at mitigation, then, the jury

could have deliberated with the erroneous impression that Tibbetts was never actually

abused as a child, which the evidence revealed in post-conviction proceedings shows is

clearly not the case. In short, had counsel relied on first-hand accounts about Tibbetts’s

abusive home and foster-care placements, the State would have been unable to challenge

so readily the little evidence of Tibbetts’s abusive childhood that was conveyed.

Furthermore, I cannot turn a blind eye in the prejudice analysis to the fact that

the effectiveness of the defense’s sole mitigation witness, Dr. Weaver, was undermined

by several of his statements characterizing Tibbetts as a dangerous individual, even

when sober. When trial counsel asked Dr. Weaver whether Tibbetts had the ability to

control himself and his impulses, Dr. Weaver stated:

When I saw him the first time, I guess that I got a little concerned aboutmy own safety. . . . When I saw him initially, and when he came in, theair when I had—when I looked at him, you know, I’m not going to crosshim. I’m not going to cross him. This was even in the Justice Center inthe medical department there. . . . It was more of a—more of an open-ended interview which I had with him for the most part, about things. Ididn’t push him. I’m concerned about my own safety.

J.A. at 1139 (Weaver Test.). These statements not only cast Tibbetts in an extraordinary

negative light, but they also weaken the legitimacy of the mitigation theory on which the

defense relied—that drugs and alcohol precluded Tibbetts from being able to appreciate

his criminal acts or control himself. After all, the only witness who had been called to

make the case to spare Tibbetts’s life was, in reality, concerned about Tibbetts’s inability

to control himself even when lucid, sober, and incarcerated, thus implying that it might


not have been the drugs and alcohol that induced the crime. Dr. Weaver’s statements did

not escape the prosecutor, who emphasized them on cross examination:

Q: You were apprehensive of this man at that time when you walkedin to sit down to see him.

A: Sort of bad vibes that I had when he walked in the room, yes sir.

J.A. at 1162 (Weaver Test.).

In short, the evidence that counsel failed to uncover and introduce through

Tibbetts’s family members and friends differs in both substance and strength from that

introduced via Dr. Weaver, Tibbetts, and the official records. As in Porter, the jury at

Tibbetts’s “original sentencing heard almost nothing that would humanize” him “or

allow them to accurately gauge his moral culpability.” Porter, 130 S. Ct. at 454. And

the type of mitigation evidence that trial counsel failed to uncover and introduce—that

Tibbetts was abused as a child—is markedly different from the evidence that supported

defense counsel’s chosen mitigation theory. Evidence of childhood abuse certainly

would “have elevated the jurors’ sympathies for [Tibbetts],” Bueke, 537 F.3d at 645, in

a way that evidence of his intoxication and drug abuse would not. As a panel of this

Circuit stated in Wiles v. Bagley, “it is hardly self-evident that getting high on

barbiturates before stabbing someone to death is the kind of evidence that makes a

capital defendant look better in the eyes of a court as opposed to making him look even

worse.” Wiles, 561 F.3d at 640 (internal quotation marks and alteration omitted). But

it is impossible to conclude that evidence of his mistreatment as a child would not have

provided a compelling reason to find Tibbetts less morally culpable and spare him a

death sentence. “Mitigating evidence unrelated to dangerousness may alter the jury’s

selection of penalty, even if it does not undermine or rebut the prosecution’s death-

eligibility case.” Williams, 529 U.S. at 398.

As a final response to the majority’s claim that counsel was not constitutionally

deficient and that Tibbetts was not prejudiced, I emphasize that the Supreme Court

recently made clear that it has “never limited the prejudice inquiry under Strickland to

cases in which there was only little or no mitigation evidence presented.” Sears v.


3The State’s reliance on Brooks v. Bagley, 513 F.3d 618, 626 (6th Cir. 2008), and Nields v.Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007), is unconvincing. In Brooks, a panel of this Circuit held thatthe petitioner was not prejudiced by counsel’s actions, even assuming deficient performance, because theinformation contained within the post-conviction affidavits was either presented verbatim at trial, Brooks,513 F.3d at 625–26, 629, or not of the type that would have helped, id. at 627 (indicating the additionalinformation consisted solely of Defendant’s “belief in voodoo,” the “accusation that [Defendant’s wife]was having an incestuous relationship with the couple’s oldest son,” and the Defendant’s “refusal to allowhis oldest son to display athletic trophies”). As outlined above, however, that is not the case here.Furthermore, unlike the instant case, the trial record in Brooks directly contradicted many of the claimsin the post-conviction affidavits, id. at 626–27, 628, and many affidavits failed to state what informationthe affiants would have provided had they been contacted before the trial, id. at 630.

Nields is likewise distinguishable. In Nields, a panel of this Circuit first determined that counselwas not deficient, Nields, 482 F.3d at 453, and then concluded that the undiscovered additional mitigatingevidence was “relatively weak” regardless, id. at 454. That additional evidence in Nields would haverevealed that the petitioner’s “‘childhood home life was chaotic and neglectful,’ that ‘he was an expert anddedicated musician whose life was once very focused,’ that ‘he had several successful employmentexperiences and was a hard worker,’ that ‘he did not drink while he was working,’ and that he ‘was adependable, kind-hearted friend and an extremely helpful, friendly person.’” Id. (quoting defendant’sbrief). The type of undiscovered additional evidence in Tibbetts’s case is of a different character. It doesnot show simply that Tibbetts could be a good guy. It details his very traumatic, even tortured, childhoodand upbringing.

Upton, 130 S. Ct. 3259, 3266 (2010). Instead, the Court noted that it has found

“deficiency and prejudice” in cases such as the instant case, where “counsel presented

what could be described as a superficially reasonable mitigation theory during the

penalty phase,” id. (citing Williams, 529 U.S. at 398; Rompilla v. Beard, 545 U.S. 374,

378 (2005), and Porter, 130 S. Ct. at 449), but failed to uncover and present compelling

mitigation evidence related to another, legitimate and consistent theory,3 cf. Wong, 130

S. Ct. at 385 (“[Counsel] understood the gravity of [the] aggravating evidence [of guilt],

and he built his mitigation strategy around the overriding need to exclude it.”). Indeed,

the case that the majority selects to demonstrate lack of prejudice, Phillips v. Bradshaw,

607 F.3d 199 (6th Cir. 2010), is inapposite because in Phillips the additional mitigation

evidence conflicted with counsel’s mitigation strategy. In Phillips, “[“t]he majority of

the additional evidence [would have] contradict[ed] the theory that [the defendant’s]

counsel presented during the mitigation phase,” and “a different approach [to mitigation]

would have been required if the totality of the mitigating evidence [had been]

presented.” Id. at 217. Here, as shown above and in contrast to Phillips, the additional

evidence of first-hand accounts of Tibbetts’s childhood abuse would have provided

compelling reason for the jury to conclude differently at the penalty phase.


C. Counsel Was Constitutionally Ineffective

The constitutional infirmities that plagued the penalty phase of Tibbetts’s capital

trial are unfortunately frequent. Yet again in this Circuit, however, a majority of a panel

casts aside obvious and prejudicial errors by upholding a death sentence issued by a jury

that was not informed of key mitigation evidence that could have made a difference in

whether the jury decided that Tibbetts should die for his admittedly horrible crime. For

the reasons discussed above, I believe that Tibbetts has shown that his trial counsel was

constitutionally ineffective during Tibbetts’s penalty phase. Counsel was clearly

deficient in his investigation of mitigating evidence. Although he hired a mitigation

specialist and requested several records from a variety of educational and medical

institutions, counsel failed to follow up on the specialists’ leads and explain the

relevance of the introduced documents. Moreover, counsel called only one mitigation

witness, who was not properly equipped to discuss Tibbetts’s childhood. Most

disturbingly, however, counsel failed to interview Tibbetts’s family and friends, despite

their willingness to provide information. Counsel’s performance was constitutionally

deficient.

In addition, counsel’s failure to uncover significant details about the abuse that

Tibbetts suffered as a child was prejudicial. The information uncovered in post-

conviction proceedings “paint[ed] a significantly more detailed picture of [Tibbetts’s]

troubled background” than the scant evidence introduced at the penalty phase, Jells, 538

F.3d at 499. The nonintroduced evidence provided numerous details of Tibbetts’s abuse

while in foster care and disclosed, for the first time, Tibbetts’s abuse while under the

care of his biological parents. In addition to providing additional substance, had counsel

uncovered and presented the evidence disclosed during post-conviction proceedings, the

jury would have heard the horrors of Tibbetts’s upbringing from first-hand sources, and

Tibbetts would have been able to stymie the State’s attack on the truthfulness of

Tibbetts’s claims that he was abused. Presented with such evidence, the jury would have

been provided with an alternative, much more compelling case for sparing Tibbetts’s

life. Because the Ohio Court of Appeals unreasonably applied clearly established law


in concluding that counsel was not constitutionally ineffective, I would GRANT the writ

of habeas corpus on this claim.

II. CONCLUSION

For the reasons discussed above, I would REVERSE the district court’s

judgment and GRANT Tibbetts’s petition for a writ of habeas corpus on the basis of his

second assignment of error. I respectfully dissent.

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